FILED: March 26, 2009

IN THE SUPREME COURT OF THE STATE OF OREGON

STATE OF OREGON,

Respondent on Review,

v.

THOMAS EUGENE ICE,

Petitioner on Review.

(CC 99C49779; CA A111668; SC S052248)

En Banc

Submitted on remand from the United States Supreme Court on February 17, 2009.*

Ernest G. Lannet, Deputy Public Defender, Salem, filed the briefs for petitioner on review.  With him on the briefs were Peter A. Ozanne, Executive Director, and Peter Gartlan, Chief Defender, Office of the Public Defense Services.

Jonathan H. Fussner, Assistant Attorney General, Salem, filed the briefs for respondent on review.  With him on the briefs were Hardy Myers, Attorney General, and Mary H. Williams, Solicitor General.

PER CURIAM

The court's decision in State v. Ice, 343 Or 248, 170 P3d 1049 (2007), is modified.  The decision of the Court of Appeals and the judgment of the circuit court are affirmed.

*Oregon v. Ice, 555 US ___ , 129 S Ct 711, 172 L Ed 2d 517 (2009).

PER CURIAM

In State v. Ice, 343 Or 248, 170 P3d 1049 (2007), this court rejected  defendant's contention that Article I, section 11, of the Oregon Constitution requires that a jury, rather than a judge, find the facts that, under Oregon law, must be present before a judge can impose consecutive sentences.  At the same time, however, the court held that the Sixth Amendment to the United States Constitution, as interpreted by the United States Supreme Court in Apprendi v. New Jersey, 530 US 466, 120 S Ct 2348, 147 L Ed 2d 435 (2000), and Blakely v. Washington, 542 US 296, 124 S Ct 2531, 159 L Ed 2d 403 (2004), does impose such a requirement.  On certiorari, the United States Supreme Court reversed and remanded, holding that, contrary to this court's decision, the Sixth Amendment does not prohibit states from assigning to judges, rather than to juries, the task of finding the facts necessary for imposition of consecutive sentences.  Oregon v. Ice, 555 US __ , 129 S Ct 711, 172 L Ed 2d 517 (2009).  On remand, we modify the part of the court's previous opinion that addresses the jury trial provision in the Sixth Amendment:  We now hold that the trial court did not violate defendant's Sixth Amendment rights when it imposed a consecutive sentence based on the trial judge's fact-finding.  We adhere to the court's earlier conclusion that Article I, section 11, of the Oregon Constitution similarly does not require that a jury make the factual findings necessary for imposition of consecutive sentences. 

The court's decision in State v. Ice, 343 Or 248, 170 P3d 1049 (2007), is modified.  The decision of the Court of Appeals and the judgment of the circuit court are affirmed.


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